Jump to content

Will be in Webrecon Soon


Recommended Posts

It felt good to go down to my little podunk federal court house and file a complaint. Defendant is going to have to travel 300 miles to defend. But since it is where I live, that's where I filed.

I found a process server in the town they do business in and overnighted the summons to them. They broke so many lasws, I just hope the Magistrate looks at the evidence and I don't get out lawyered.

How soon after service should I wait util I start interrogatories and discovery motions.?

Crash5050

Link to comment
Share on other sites

I have the Attorney General's Opinion in my hand, it states that he DEMANDED the CA to remove the entry, because it was a TriCare and Medicare issue. The Doc was barred from Collection activities under Title 10 USC 55 and Title 32 CMF 199. The CA however says they were not in the wrong. I think this will be won or lost on my ability to follow the rules of proceedure, If they look at the facts, I will win, I am only asking for 144K, one violation for each CRA for 4 years, of course punitive damages as the court may see fit to award.

David

Link to comment
Share on other sites

I think this will be won or lost on my ability to follow the rules of proceedure,

Following the strict rules of procedure will be very important.

If they look at the facts, I will win,

I think it will come down to the statute you sued under being a strict liability statute or not. As I told you in our emails, you need to see if that is the case. The FCRA is not a strict liability statute. The FDCPA of course is.

From what I read, the facts are pretty clear cut. I don't think anybody is going to dispute the facts, they are what they are.

I am only asking for 144K, one violation for each CRA for 4 years, of course punitive damages as the court may see fit to award.

The statute of limitations for the FCRA is two years from discovery or five years no matter if you have discovered the error or not. Based on what I read, you will be arguing you just discovered the errors. So once again, I don't see this as an issue of looking at the facts. It's just going to come down to arguing the law and damages.

The FDCPA has a one year statute of limitations no matter what. You can't get punitive damages or stack the violations under the FDCPA but you can under the FCRA.

While not messing up on procedure will be important, I think this will be more of a matter of how the statute they violated is written. If it is a strict liability statute then you have them. Working against you would be the fact, if it is not a strict liability statute, they immediately removed the entry when confronted with the fact you were basically in a protected class as far as debt collection goes, for that particular period where you were protected under that statute.

I would expect the first thing they are going to try to do is file a motion to dismiss for lack of stating a claim, and argue you did not show intent. Again I have zero idea if intent has to be shown under the military statute you are basing most of your allegations on.

I know under the FDCPA when addressing the issue of overshadowing, intent to deceive or confuse does not have to be shown.

Regardless, I would expect a phone call with a nuisance offer of a grand or two to go away. You being able to prove intent or willful compliance or not will be the determining factor, in my opinion, if you should take their offer.

Link to comment
Share on other sites

  • 2 weeks later...
Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.